Friday, December 11, 2009

One of the most misused, misapplied, and misunderstood definitions in the dictionary of the Arab-Israeli conflict is the term "occupied territories." The vast majority of people simply do not know the facts or misinterpret them, thus completely distorting the real picture of the land distribution between the Arabs and the Jews. The truth of the matter is that, according to International Law, the Jews have the complete and unquestionable right to settle the territories of Judea, Samaria and Gaza (collectively known as Yesha). Not a single enforceable international document exists that forbids them from settling the lands of Yesha.

On the contrary, in modern times, the only existing enforceable document.- actually encourages Jewish settlement. This document was created on April 24, 1920 at the San Remo Conference when the Principal Allied Powers agreed o assign the Mandate for the Territory of Palestine to Great Britain. By doing so the League of Nations "recognized the historical connection of the Jewish people with Palestine" and established "grounds for reconstituting their national home in that country." [Article 6 of the Mandate "encouraged close settlement by Jews on the land," including the lands of Judea, Samaria and Gaza (Yesha).]

There is nothing whatsoever in the Mandate that separates Yesha from the rest of the mandated territory. That means that the right of the Jews to settle the land spreads to the whole of Palestine. As a side note it is worth mentioning that the 76% of the territory of Mandated Palestine known today as Jordan, were not permanently exempt from settlement by the Jews either. [Article 25 only allowed to "postpone or withhold application of [this] provision."].

With the disbanding of the League of Nations, the rights of the Jews to settle the territories of Palestine, including Yesha, were not hurt. When in 1946 the United Nations was created in place of the League of Nations, its Charter included Article 80 specifically to allow the continuation of existing Mandates (including the British Mandate). Article 80 stated that "nothing ... shall be construed in or of itself to alter in any manner the rights whatsoever of any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties."

Then in November 1947 came time for Resolution 181, which recommended the Partition of Palestine. Like all UN Resolutions pertaining to the Jewish-Arab conflict it was not enforceable. It was simply a recommendation, and the Arab countries rejected it. As the Syrian representative in the General Assembly stated:

"In the first place the recommendations of the General Assembly are not imperative on those to whom they are addressed. The General Assembly only gives advice and the parties to whom advice is addressed accept it when it is rightful and just and when it does not impair their fundamental rights" (1)***.

If the resolution had been implemented maybe it would be possible to argue that it replaced the San Remo Conference resolution, which had legitimized the rights of the Jews to settle in any place in Palestine. However, it was not only rejected by the Arabs, but in violation of the UN Charter they launched a military aggression against the newly reborn Jewish State thus invalidating the resolution. By the time of the cease-fire at the end of the War of Independence there was still no other enforceable document pertaining to the rights of the Jews to settle in Eretz Yisrael - they remained intact.

Now we approach the most misunderstood aspect of the scope and application of international documents. In order to resolve the puzzle of the "occupied" territories, one must clearly distinguish between the different types of resolutions passed by the United Nations. Misconceptions about the issue led to the question of a double standard that was constantly raised by the Arabs after the Persian Gulf War. The Arabs were unable to understand why, from Iraq, the UN demanded compliance with the decisions of the international body, while Israel was not forced to comply with UN resolutions.

On April 3, 1998 Swedish Foreign Minister Lena Hjelm-Wallen, well known for championing the Arabs' position, in an interview with the London al-Quds al-'Arabi, gave an explanation of this "paradox." She was asked, "What about the double standards that the United States and Europe adopt when it comes to Arab issues?" She answered:

"I understand this view, which is common in many Arab countries. Nevertheless, the UN resolutions passed on Iraq are different, because they are binding for all nations according to Article 7 of the UN Charter. Meanwhile, the resolutions passed against Israel are not subject to Article 7 of the Charter."

To better understand the way UN resolutions work, it is worth reading an open letter by Uri Lubrani, coordinator of Israeli activities in Lebanon, addressed to Lebanon's Foreign Minister Faris Buwayz and published on February 27, 1998 in the Paris newspaper al Watan al-'Arabi. Although the letter was written regarding Resolution 425, it talks about all resolutions pertaining to the Arab-Israeli conflict. Uri Lubrani wrote the following:

"There are two types of resolutions in the Security Council. The first type are resolutions passed on the basis of Chapter Six of the UN charter that relates to the settlement of disputes through peaceful means. Such resolutions are considered recommendations. They are not binding, and they do not require immediate implementation. The second type of resolutions are based on Chapter Seven of the UN charter... This chapter grants the UN Security Council resolutions an implementative authority and commits the international community to use force if necessary to implement these resolutions...NONE of the UN Security Council resolutions pertaining to the Arab Israeli conflict, including Resolution 425, were passed on the basis of Chapter Seven. They were passed on the basis of Chapter Six of the UN charter, which is the basis also of UNSC Resolutions 242 and 338."

Since no mandatory UN Resolution exists pertaining to the Arab-Israeli conflict, we are left with the San Remo Conference decision that governs land ownership in Palestine. That means that not a single enforceable internationally valid document exists that prevents or prohibits the Jews from settling anywhere in Judea, Samaria, Gaza and all the rest of Eretz Yisrael. Or, to put it differently, from the standpoint of International Law FOR THE JEWS IT IS NOT AN OCCUPIED LAND!..

This conclusion was confirmed not long ago by an unexpected (for Israel) source. It is hard to argue with the fact that James Baker, former US Secretary of State, was not the best friend of the Jewish state. However, he categorically rejected the mislabeling of the lands of Yesha. This happened at the Middle East Insight Symposium in Washington on May 4, 1998. Hoda Tawfik, from the newspaper Al Ahram asked him, "What do you think is right? That these are occupied Arab territories and not disputed territories?" Baker replied, "They're CLEARLY disputed territories. That's what Resolutions 242 and 338 are all about. They are clearly disputed territories."

All of this means that when the Jews build settlements in Yesha, they are not building them on "occupied" territories. If one wants, one may call them "disputed" territories, as Baker did. However, this will still not change the fact that from the standpoint of International Law it is the very land where the Jews were encouraged to settle.

And as a final note, it should not be surprising that the San Remo Conference plays such an important role in this particular case. The majority of the other players in the conflict: Egypt, Syria, Iraq, Lebanon, Jordan, etc. gained sovereignty over their territories based on the decisions of EXACTLY the same conference. The Jews finally deserve to settle freely on their territories as well!. It is time to stop labeling them "occupied".

NOTE:

(1)***. Abba Eban. Voice of Israel. Horizon Press, New York, 1957.

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Boris Shusteff is a research associate for the "Freeman Center for Strategic Studies".

Critics may assail them on other grounds, but no one can deny that they are legal. In fact, the 1922 Mandate for Palestine encourages them.

President Obama asserts, seconded by Secretary of State Hillary Rodham Clinton, that "America does not accept the legitimacy of continued Israeli settlements" in the West Bank. Both have praised the 10-month freeze on new residential building -- excluding eastern Jerusalem -- that Prime Minister Benjamin Netanyahu announced late last month.

Netanyahu now calls for Palestinian Authority President Mahmoud Abbas to resume negotiations or take the blame for lack of progress when the "one-time-only" freeze expires. Abbas' precondition -- adopted after Washington's pronouncements -- is that all Israeli construction, including in eastern Jerusalem, must cease permanently.

Too bad international diplomacy doesn't have a replay button. If it did, the parties could look back at history, which would show that Israeli settlements not only are legitimate under international law but positively encouraged.

The basic relevant provision, the League of Nations' 1922 British Mandate for Palestine, Article 6, encourages "close settlement by Jews on the land, including state lands and waste lands not required for public use." Most Israeli settlements in the West Bank have been built on land that was state land under the Ottomans, British, Jordanians and, after the 1967 Six-Day War, under the Israelis, or on property that has been privately purchased.

The United States endorsed Article 6 by signing the 1924 Anglo-American Convention, a treaty stipulating acceptance of the mandate. The League of Nations is long gone, but Article 6 remains in force. The United Nations' 1945 Charter, Article 80 -- sometimes known as "the Palestine article" -- notes among other things that "nothing in the charter shall be construed to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments."

Eugene Rostow, U.S. undersecretary of State for President Lyndon Johnson -- who is an authority on international law and the coauthor of U.N. Security Council Resolution 242, which outlines requirements for Arab-Israeli peace -- reaffirmed this principle. In 1990, he said: "The Jewish right of settlement in the West Bank is conferred by the same provisions of the mandate under which Jews settled in Haifa, Tel Aviv and Jerusalem before the state of Israel was created."

As for Resolution 242's call for "secure and recognized boundaries," according to Rostow in 1991 in another piece, a careful look at the wrangling over the resolution in 1967 makes it clear that it did not mandate Israeli withdrawal from all of the West Bank, Gaza Strip, Golan Heights and Sinai peninsula to the post-1948 armistice lines.

Many who allege that Jewish communities in the West Bank violate international law cite the 4th Geneva Convention, Article 49. It states that an occupying power "shall not deport or transfer parts of its own civilian population into the territory it occupies." But Julius Stone, like Rostow a leading legal theorist, wrote in his 1981 book, "Israel and Palestine: An Assault on the Law of Nations," that the effort to designate Israeli settlements as illegal was a "subversion . . . of basic international law principles."

Stone, Stephen Schwebel, a former judge on the International Court of Justice, and others have distinguished between territory acquired in an "aggressive conquest" (such as Nazi Germany's seizures during World War II) and territory taken in self-defense (such as Israeli conquests in 1967).

The distinction is especially sharp when the territory acquired had been held illegally, as Jordan had held the West Bank, which it seized during the Arab states' 1948-49 war against Israel.

Further, Article 49 of the 4th Geneva Convention was intended to outlaw the Nazi practice of forcibly transporting populations into or out of occupied territories to labor or death camps. Israelis were not forcibly transferred to the West Bank, nor were Palestinian Arabs forced out of it. Two years after President Carter's State Department determined that Israeli settlements violated international law, President Reagan said flatly that they were "not illegal."

One can argue, as Reagan did and Obama does, that Israel's establishing towns in the disputed territories after 1967 obstructs diplomacy, or, as some Israeli critics do, that building Jewish communities near Palestinian Arab population centers disperses the country's Jewish majority too widely. But one cannot accurately declare the settlements illegal.

Eric Rozenman is Washington director of CAMERA, the Boston-based Committee for Accuracy in Middle East Reporting in America.

Friedman correctly blames what he calls "The Narrative" — the "cocktail of half-truths, propaganda, and outright lies about America." For example, there is the Arab perception of an "American/Crusader/Zionist conspiracy" against Muslims. However, his analysis misunderstands the problem and misleads readers by ignoring the central place of jihad in Muslim and Arab thinking.

Asking why Muslims "take to the streets" over a cartooned Muhammad (minus the murder and mayhem) but won't protest Muslim suicide bombers is a proper recognition of fault, but it also confuses the nature of the conflict.

Jihad is to Islam what belief in Jesus is to Christianity or following Torah is to Judaism. Jihad is essential to "The Narrative," and understanding the threat of jihad is essential to non-Muslims.

As interpreted by Muslim clerics, jihad means enforcing the superiority of Muslims and Muslim law over anything and anyone else. Islam does not preach tolerance. It is a religion of totalitarianism.

Friedman laments:

Don't they appreciate how much we've done for them … trillions of dollars, thousands of American and allied soldiers lives lost to bring democracy and stability to Iraq and Afghanistan?

Of course they do not appreciate what we have done.

For many, Israel is the "oppressor of Muslims" and the "occupier of Arab land." A reasonable conclusion might suggest the U.S. drop relations with Israel in order to improve relationships with Arabs and Muslims. This seems to be Obama's policy — weaken Israel, force it back to the armistice lines of 1949, and arm Palestinians to the teeth.

Then, miraculously, Arabs and Muslims will embrace America's "crusade" against Muslim countries. No more 9/11s and Ft. Hoods. A second Arab Palestinian state will make things better! No more nasty jihad!

Hardly. As smart as Friedman is, he distorts the conflict (and "The Narrative") between Israel and Arab Palestinians by defining it as territorial rather than existential. He and his colleagues at the New York Times fail to understand the true nature of "Palestinianism[2]," in which Maj. Nidal Hasan believed, and its jihadist roots. Israel's presence in any form is unacceptable, and anyone who supports Israel deserves death.

The "occupation of Palestine" did not begin in 1967; it began in 1948, when Israel was established. The root of "Palestinianism," as Matthias Kuntzel points out in Jihad and Jew-hatred, Islamism, Nazism and the Roots of 9/11[3], is "the narrative" of jihad. Israel represents everything America and Western civilization stand for — democracy, tolerance, modernity — which is precisely what Islamists and jihadists despise.

Naively, Friedman calls on Muslims to promote a "positive interpretation" of Islam. Nice, if you don't get murdered trying. And what about "liberating Palestine"?

If "ending the occupation" is a prerequisite for rapprochement, as Friedman proposes, let's get that narrative straight. If "Palestinianism," wiping out Israel, is simply another form of jihadism, then why not include that in "The Narrative"?

When genocidal calls to eliminate Israel are not only tolerated but applauded in the United Nations; when Israel is vilified daily, not only by the Arab world, but by the media, including the Times; when Arab terrorists are called "activists" and Arabs preaching incitement and Jew-hatred receive U.S. and EU funding, why isn't that part of "The Narrative"?

"The Narrative" against which Friedman writes so eloquently is not only about Islamists; it is also about those who preach "Palestinianism" as another form of jihad, masking a fake and virulent nationalism supported by the international community that seeks Israel's elimination.

Homicidal Muslim leaders aren't the only danger — so are the respectable politicians and journalists who believe that giving Arab Palestinians a state and appeasing terrorists will end the violence.

Friedman's take on "The Narrative" is not a solution. It's part of the problem.

Thousands of Iranian police used batons and fired teargas to disperse demonstrators chanting anti-government slogans in a central Tehran square in the latest street confrontation between the government and the opposition.

Authorities shut down the mobile phone network in the centre of the capital to stop opposition protesters from contacting each other, the reformist website Rah-e Sabz said. At least two women supporters of the opposition leader Mir Hossein Mousavi were among those arrested, it said.

"I saw at least 10 people being arrested and taken to minibuses," one witness said.

"Police fired teargas at demonstrators in Vali-ye Asr Square … they are clashing with protesters," another said.

The clashes came as Iran commemorated the killing of three students in 1953 under the former shah. Security forces put on a show of strength to prevent the opposition from taking over the main state rally. The large security operation showed that authorities planned to make good on their promise to deal harshly with protesters. In recent years, students have used the occasion to hold pro-reform demonstrations.

"Police are using batons to disperse demonstrators. People are chanting anti-government slogans in the Ferdowsi Square," a witness told Reuters.

Other witnesses said police were conducting ID checks on anyone entering the Tehran University campus to block opposition activists from joining the students. Security forces also sought to conceal the campus from public view, covering the main gate and the fence with banners carrying quotations by the supreme leader, Ayatollah Ali Khamenei, and congratulatory messages marking an important Shia occasion celebrated yesterday.

"There are hundreds of riot police, [they are] everywhere around Tehran University and nearby streets," a witness said.

Many shops and businesses outside the university were closed but the rest of Tehran appeared to be functioning normally.

Foreign media were banned from covering the protests. They were told by the culture ministry that press cards would be suspended for three days starting today.

Last night, government opponents climbed on to rooftops and shouted "Allahu Akbar" and "Death to the dictator".

Internet access was restricted to deny the opposition a vital means of communication to mobilise supporters.

Government opponents were hoping for a large turnout for today's demonstrations to show their movement's strength despite several government crackdowns and intimidation of opposition figures outside Iran since the country's disputed presidential election in June. Mousavi threw his support behind the planned student demonstrations and declared that his movement was still alive. A statement posted on his website said that the clerical establishment could not silence students and was losing legitimacy in the Iranian people's minds.

"A great nation would not stay silent when some confiscate its vote," said Mousavi, who claims President Mahmoud Ahmadinejad stole the 12 June election victory from him.

Khamenei, who has the final say on all state matters, accused the opposition yesterday of exposing divisions in the country and creating opportunities for Iran's enemies.